AMBA comments on the decisions of the Administrative council of June 30, 2016 and their effects on the independence of the Boards of Appeal – New location for the Boards of Appeal outside Munich

In its June meeting, the Administrative Council (AC) adopted the proposals of the President of the EPO on the structural reform of the EPO with some modifications and amended the Implementing Regulations to the EPC (see post dated July 1, 2016). New Rules 12a, 12b and 12c EPC, already entered into force, transform Directorate General 3 into the “Boards of Appeal Unit” managed by a President of the Boards of Appeal. A Board of Appeals Committee (BOAC) is set up to advise the AC and the President of the BoA.

In a statement of July 15, 2016, the Association of the Members of the Boards of Appeal (AMBA) concedes that reform appears to improve the independence of the BoA vis à vis the President of the Office in some respects. However, AMBA adds that concerns expressed previously by them, by the Presidium and by users’ organizations, apply, for the most part, to this reform just as to the previous proposals since the reform also contains measures that reduce the independence of the BoA and falls way short of what should and could have been achieved.

This applies inter alia to the link between re-appointment and performance evaluation which ends the customary re-appointment by default and, thus, effectively limits the security of tenure to 5 years.

AMBA also doubts whether the revised appointment procedure is in conformity with Article 11 (3) EPC. In this respect, the following may be added. Whereas new Rule 12a (1), 2nd sentence, provides that the Chairman of the Enlarged BoA shall act as President of the BoA, the next sentence of the provision stipulates that the President of the BoA is appointed on a joint proposal by the BOAC and the President of the EPO. On the other hand, Article 11 (3) EPC provides that the Chairman of the Enlarged Board of Appeal is appointed by the AC on a proposal of the President of the EPO. How this is intended to fit together, whether there are two appointments to make or only one and whether Rule 12a can modify Article 11 (3) EPC remains an open question, considering that in cases of conflict the provisions of the Convention prevail in accordance with Article 164 (2) EPC.

Contrary to the AC’s position in the March meeting, the AC adopted in June the proposal of the President of the EPO to locate the Boards of Appeal in a separate building. According to the President’s document, the search for the building concentrated on the south eastern area of Munich, mainly due to the proximity to the European school and the Federal Patent Court. If these were actually the criteria applied, the searchers were not very successful.

The Blogs report that a building in Haar has been chosen, a location which is not in Munich, but in a separate community outside Munich, at a distance of 14 km from the centre of Munich, of 12 km from the European school and of 15 km from the Bundespatentgericht. Public transport from the airport requires 1h 8 minutes, from the European School some 50 minutes. Whereas the administration and the examining staff remains at prestigious locations in the centre of Munich, low cost accommodation outside Munich appeared appropriate for the BoA, which will remain the only central instance in Europe for deciding on the patentability requirements of the Convention for the foreseeable future.

In addition, the President has announced that more efficient usage of space will be achieved in the new building, which may be considered as a euphemism for the fact that the BoA will have less space available. If that turns out to be true one can hardly expect additional Board members to be appointed, urgently needed to cope with the backlog deplored by the management. The announced increase in efficiency in order to reduce pendency times of appeals will hardly result in a more liberal approach in the application of procedural rules by the Boards.

The choice of the new building has to be approved by the Budget and Finance Committee of the AC.

The relocation of the Boards does not change the integration of the BoA into the general administration of the Office, in particular staff administration, Investigation Unit and IT structure. Eventually, the perception of independence has turned out to be the guidance for the structural reform, not independence in substance. The EBA’s decision R 19/12 continues to show its consequences. Honni soit qui mal y pense … .
Read the AMBA statement here.